United States v. Shepherd

880 F.3d 734

UNITED STATES of America, Plaintiff–Appellee,

v.Adam Daniel SHEPHERD, Defendant–Appellant.

No. 15-50991

United States Court of Appeals, Fifth Circuit.

January 26, 2018

Joseph H. Gay, Jr., Margaret Mary Embry, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff–Appellee.

George William Aristotelidis, San Antonio, TX, for Defendant–Appellant.

Before JONES, SMITH, and PRADO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Adam Shepherd appeals the denial of his 28 U.S.C. § 2255 motion. Because his guilty plea was rendered involuntary by ineffective assistance of counsel ("IAC"), we reverse and grant the motion.

I.

Shepherd exposed himself to two minor girls in Arizona in 2002. Arizona charged him with one count of indecent exposure to a minor (Count 1—a class six felony) and one count of public sexual indecency to a minor (Count 2—a class five felony). Under a plea agreement, Count 1 was dismissed, and Shepherd pleaded guilty to an amended Count 2.

The exact nature of the amended charge is disputed. Shepherd was originally charged with the class five felony of "[p]ublic sexual indecency to a minor ." See ARIZ. REV. STAT. ANN. § 13-1403(c) (emphasis added).¹ Conversely, general "[p]ublic sexual indecency is a class 1 misdemeanor." ARIZ. REV. STAT. ANN. § 13-1403(c). The plea agreement, however, described the charge as "Count 2, Amended, Attempted Public Sexual Indecency , a class 6 designated felony, in violation of A.R.S. 13-1403, ... 13-1001 ..."² Section 13-1403 is titled "Public sexual indecency; public sexual indecency to a minor; classification," and Arizona punishes "attempt" offenses as one class below the completed offense. See ARIZ. REV. STAT. ANN. § 13-1001(c). The amended charge does not indicate that "a minor under the age of fifteen years was present," and the classification of the offense changed. Shepherd was given a suspended sentence of 230 days and lifetime probation³ and was required to register as a sex offender.⁴

After his 2003 conviction, Shepherd moved to Nevada. In 2006, he exposed himself to two girls (ages unknown) in Nevada and was charged with "INDECENT EXPOSURE, a violation of N.R.S. 201.220, a felony."⁵ In 2007, Shepherd pleaded guilty and was sentenced to 12 to 34 months and was required under Nevada law to register for life as a sex offender.

Shepherd moved to Texas in 2011 but did not register as a sex offender. In 2012, Nicholas Rose, a Deputy U.S. Marshal Criminal Investigator, was notified by police that Shepherd was an unregistered sex offender.⁶ According to Rose, he "checked the Texas DPS website that has a list of all registered sex offenders in Texas and Adam Shepherd was not listed." He then requested Shepherd's documents of conviction from Arizona and Nevada and contacted the Texas Department of Public Safety ("DPS"). Upon review, DPS stated, "Only the AZ offense would require registration ...."

Shepherd was arrested in June 2012⁷ and indicted the next month. He was charged with "knowingly fail[ing] to register and update his registration as required by the Sex Offender Registration and Notification Act, [a]ll in violation of Title 18 United States Code, Section 2250(a)." Shepherd acknowledged that he had been living in Texas since 2011 and that he had not registered because he believed he was not required to register under Texas law.

Shepherd entered a plea of "not guilty" and filed an "Unopposed Motion to Continue." Counsel indicated that he had "recently received discovery" and needed "[a]dditional time ... so that [he] may review discovery with Mr. Shepherd as well as confer with Assistant United States Attorney Tracy Thompson." The court granted the motion in September 2012, and later that month Shepherd pleaded guilty.

At the plea hearing, the magistrate judge requested the government provide the factual basis for the offense. The government responded that "[i]f this case proceeded to trial ... the Government would prove" that Shepherd was convicted in Arizona and Nevada for indecent exposure and that "[b]oth of those convictions qualify Mr. Shepherd as a sex offender under the Sex Offender Registration and Notification Act." Further, the government claimed it would prove that "at no time did Mr. Shepherd register as a sex offender anywhere in the state of Texas." When questioned, Shepherd stated that he understood and agreed with the government's factual basis.

On December 19, 2012, the district court sentenced Shepherd to twenty-four months of imprisonment, thirty years of supervised release, and a $100 special assessment. Shepherd challenged the supervised release on appeal, and we affirmed. See United States v. Shepherd , 542 Fed.Appx. 346 (5th Cir. 2013).

After being released from prison, Shepherd attempted to register as a sex offender in Texas. But DPS informed him that he did not have a duty to register based on either his Arizona or Nevada conviction. Shepherd thus filed a motion to vacate his sentence per 28 U.S.C. § 2255 in October 2014.⁸ He claims that he is not currently, nor ever was, under a legal duty to register in Texas and that his trial attorney was ineffective for failing to make that claim.

Upon request to show cause by the magistrate judge, Shepherd submitted a letter dated January 6, 2015, from Randy Ortega, the managing attorney for the crime records service department of DPS. Ortega stated that he reviewed the Arizona and Nevada convictions, and "[he] do[es] not see that [Shepherd] has a duty to register as a sex offender for either case, as the elements of these offenses as disposed are not substantially similar to a Texas Reportable Conviction ...." Ortega testified that "[he is] the attorney currently who makes the determinations" concerning sex offender registration.⁹

Ortega then explained that before August 30, 2012, DPS utilized a different method to determine whether an out-of-state offense was substantially similar to a reportable Texas offense.¹⁰ Under the old method, DPS looked both to the elements of and the facts underlying the out-of-state offense. On August 30, 2012, however, the Texas Third Court of Appeals issued a decision in Texas Department of Public Safety v. Anonymous Adult Texas Resident , 382 S.W.3d 531 (Tex. App.—Austin 2012, no pet.), repudiating that method. Anonymous Adult restricts DPS to comparing only the elements of an out-of-state offense with the elements of a Texas reportable offense. Id. at 535. The facts generally cannot be reviewed.¹¹

In regard to Shepherd's Arizona conviction, Ortega explained that DPS originally reviewed the underlying facts and determined "the facts ... [were] substantially similar to behavior that would otherwise be qualified as a reportable conviction." So "there may have been a prior duty" to register under the old method, but under the current method, where the facts cannot be considered, Shepherd is not required to register. Ortega viewed the Arizona conviction as "attempted public sexual indecency," which does not correlate to any reportable Texas offense. He agreed that "because the offense [Shepherd] pled to removed the word ‘minor’ from the conviction title," Shepherd "no longer would have to register." The ambiguity of the plea document in regard to the offense caused him to "err[ ] on the side of caution" and "g[i]ve the defendant the benefit of the doubt." Further, Ortega testified that if asked on August 31, 2012, whether Shepherd had a duty to register, he likely would have said no.

Rejecting the recommendation of the magistrate judge, the district court denied Shepherd's § 2255 motion, reasoning "that the DPS erred in concluding in January 2015 that Shepherd was not required to register" because " Ariz. R.S. § 13-1403 is substantially similar to Texas Penal Code § 21.11." Shepherd v. United States , Civil Action No. SA-12-CR-643-XR, 2015 WL 5163401, at *3 (W.D. Tex. Sept. 1, 2015). The court granted a certificate of appealability on (1) whether Shepherd's plea was rendered involuntary by "his lack of knowledge about DPS' change in position ... that his Arizona conviction did not, after all, require that he report" and (2) whether Shepherd was actually innocent of the federal offense.

II.

The Sex Offender Registration and Notification Act ("SORNA"), Title I of the Adam Walsh Child Protection & Safety Act, requires "[a] sex offender [to] register, and keep the registration current, in each jurisdiction where the offender resides ...." 34 U.S.C. § 20913(a). "SORNA makes it a federal crime for anyone required to register as a sex offender to travel in interstate commerce and knowingly fail to register or update his or her registration." United States v. LeTourneau , 534 F.Supp.2d 718, 720 (S.D. Tex. 2008) (citing 18 U.S.C. § 2250(a) ). "A defendant is subject to SORNA's provisions if (i) he or she has a state law sex offense requiring registration as a sex offender; (ii) then travels in interstate commerce; and (iii) knowingly fails to register or update his or her registration as required by state law." Id . (citing 34 U.S.C. §§ 20911, 20912, 20913 ).

An out-of-state sex offender is required to register in Texas if his offense falls within the requirements of Texas Code of Criminal Procedure Chapter 62. The DPS determines whether an out-of-state offense is substantially similar to a reportable Texas offense so as to require the out-of-state offender to register. TEX. CRIM. PROC. CODE ANN. § 62.003(a). A conviction of indecency with a child is a Texas offense requiring registration. Id . § 62.001(5)(A).

III.

Shepherd both raises a freestanding claim of actual innocence and challenges the validity of his guilty plea. "[O]ur caselaw does not recognize freestanding actual innocence claims," United States v. Fields , 761 F.3d 443, 479 (5th Cir. 2014), so we review only the validity of the plea.

On appeal of the denial of a § 2255 motion, we review the district court's factual findings for clear error and its legal conclusions...